Penalty u/s 112 of CA - smuggling - It appeared that the Pashmina shawls in question was imported into India contrary to prohibitions imposed under the Customs Act and were liable to confiscation - Held that: - the allegations in the show cause notice are only presumptive. There is no evidence on record by which this appellant can be linked with the seized Pashmina shawls at Barhni LCS - almost all the goods were found to be legally imported. The seizure of a small part of the goods originally s .....

penalty of ₹ 1,00,000/- have been rightly imposed under Section 112 of the Customs Act on the appellant. 2. The brief facts of the case are that on 08th January, 2004 Officers of L.C.S. Barhni intercepted a Tata Truck bearing Registration No.NA-2 KHA-2340 at the Customs barrier, which was having a valid permit dated 06/01/2004 for entry into India issued by the Embassy of India, Kathmandu. During examination of the said truck, it appeared to have some cavity within the body of the truck. .....

pying the truck, namely, driver of the truck Shri Chhewang Tamong, resident of Kathmandu, Nepal, Shri Bajirman Dong Tamong resident of Kathmandu, Nepal and Shri Dawa Tamong resident of Kathmandu, Nepal. During the course of inspection, the driver Mr. Chhewang Tamong had escaped. Under interrogation Shri Bajir Man Dong Tamong disclosed himself as the owner of the recovered Pashmina Shawls and Shri Dawa Tamong disclosed himself as the cleaner/helper of the truck. On demand both of them could not p .....

said goods were drawn by the officers of LCS, Barhni, having reason to believe that the goods recovered, Pashmina Shawls valued at ₹ 1 Crore, were liable to confiscation for contravention of the provisions of Section 3 of Foreign Trade Regulations Act, 1992 and Notification No.9/96-Cus dated 22nd January, 1996 issued under Section 11 of the Act. It appeared, the said truck was also liable for confiscation for concealing contraband goods in the specially constructed cavity. Shri Bajirman Do .....

belief that the same were also liable to confiscation. 3. Shri Bajirman Dong Tamong in his statement dated 09.01.2004 under Section 108 of Customs Act admitted that he was the owner of the seized Pashmina Shawls, which were recovered from the cavity of the truck and he was going to deliver the same to Shri Sanjay Sethia of M/s Amar Trader, Lajpat Nagar, New Delhi. He further admitted that he was dealing in the business of Pashmina Shawls for the last 2-3 years and he had purchased these shawls f .....

such particular shawls to M/s Amar Trader, New Delhi. After reaching the consignment at Delhi, he would make phone calls to Shri Sanjay Sethia and as per the directions he would unload the Seized goods. That he would take payment in Indian Currency and take it to Nepal by draft. Further, he admitted that he was having a shop in China Town Shopping Centre, Kathmandu and he stored Chinese goods as well as the goods of other countries in his shop. That he did not know the owner of the truck but he .....

was recorded from Shri Sanjay Sethia before the Customs officers at Delhi. It appeared that he was involved in business of Pashmina Shawls from Nepal into India. He also admitted that he had placed a verbal order for supply of 5000 pieces of Pashmina Shawls to Shri Chewang which were to be delivered at his address at Lajpat Nagar-New Delhi. He admitted that he was running three companies in the name of M/s Amar Traders, M/s Oswal Textile Agencies & M/s Satyanarayan, Lajpat Nagar, New Delhi. .....

did not deal in import/export but the other firm namely M/s Oswal Textiles Agencies, Proprietor Smt. Rajni Bafana dealt with import-export from M/s Himali Pashmina Udyog, Om Himalaya Pashmina Udyog and M/s Mountain Pashmina Udyog, Nepal. He also disclosed that Pashmina wool yarn was imported into Nepal from China and Pashmina Shawls were prepared. On being asked about the firms importing only yarn from China into Nepal, he could not give any reply. On being asked about Shri Bajirman Dong Tamong .....

so appeared that Shri Sanjay Sethia was carrying on the business of imported shawls even prior to December, 2003. An entry in file No.1 page 20 seized from his premises reveals that certain stock shown to have been acquired directly from Himalaya Pashmina on 15/10/2003, for which no legal import document was available. Statement of one Shri Satyanarayan, who is stated to be the owner of M/s Satyanarayan Traders, New Delhi was recorded in which he disclosed that he was accountant in the firms M/s .....

me of seizure by the officers of Customs, Barhni from the recovered shawls and Trade opinion obtained from M/s Pravin concern, Krishna Nagar, Nepal and from Secretary of Udyog Vanijya Vyapar Sangh, Krishna Nagar, Nepal, who vide their letters dated 08th January, 2004 confirmed the same to be Pashmina shawls of Chinese origin. The Texture and quality of Pashmina shawls was also got tested from the Textile Testing Laboratory of Central Silk Board, Ministry of Textiles, Government of India, namely .....

oms Act and were liable to confiscation. Thus, it appeared that the shawls valued at ₹ 1,00,00,000/- and other miscellaneous foreign origin goods valued at ₹ 9,79,925/- seized by the Customs Officers at Delhi (from the premises of Sanjay Sethia) were liable to confiscation under Section 111(d) of the Customs Act, 1962 for contravention of the provisions of Section 3 of the Foreign Trade Regulation Act, 1992 and Notification No.9/96-Cus. 7. A show cause notice dated 15/06/2004 was iss .....

₹ 9,79,925/- seized by the Customs officer at New Delhi from the Shri Sanjay Sethia be not confiscated along with proposed confiscation of the said Tata Truck. Further, personal penalty was proposed under Section 112 of the Customs Act. 8. The SCN was adjudicated on contest. The appellant herein, filed a letter dated 13/08/2004 through his Advocate, wherein he requested for provisional release of the goods seized by the Delhi Customs Authorities from the premises of the Traders, stating th .....

ional release. The report regarding authenticity of bills of entry and their co-relation with the goods seized during follow-up obtained from Delhi Customs authorities reveals that two copies of Bills of Entry did not tally with each other and some of the goods do not cover by the Bill of Entry. The goods seized by the Delhi Customs on 09th January, 2004 valued at ₹ 9,79,925/- was ordered to be provisionally released by the Commissioner of Customs, Lucknow by order dated 10/12/2004 on furn .....

premises are licitly imported and duty paid goods which had been provisionally released on payment of cash security and execution of bond. There is no evidence on record that her firms M/s Oswal Textile Agencies had purchased any goods from Shri Bajirman Dong Tamang by executing a power of attorney in favour of Shri Sanjay Sethia, she had entrusted all the work of firm on him and the submissions made by him may be read for and on behalf of M/s Oswal Textile Agencies, New Delhi. Further, it was .....

he commission of the said offence. Mr. Bajirman Tomang never stated that he had received any amount from Shri Sanjay Sethia or that he had contacted the appellant and he was going to deliver the said contraband goods to him. Mere recovery of visiting card of the appellant from Mr. Bajirman Tomang is not sufficient evidence to connect the appellant with the seized goods. Further, from the panchanama, it is evident that from the seized pocket diary of Mr. Bajirman Tomang including visiting card of .....

. Further, he ordered confiscation of the seized Tata container truck No.Na-2.Kha-2340 with option to redeem to its owner on payment of fine of ₹ 50,000/-. Further, the miscellaneous goods recovered and seized from the appellant valued at ₹ 1,70,650/- (out of total goods) as per details in the Table-II of the order dated 09.08.2004, were held to be liable to confiscation and as the goods had been provisionally released to the appellant on furnishing of cash security and bond, option .....